In Culley v. Marshall, a civil forfeiture case decided earlier in the week, the Supreme Court concluded that the due process clause does not require a preliminary hearing regarding seizure pending an eventual forfeiture hearing. Justice Gorsuch, joined by Justice Thomas, concurred — agreeing on the narrow ruling rejecting the preliminary hearing but suggesting that modern civil forfeiture as a whole may have constitutional problems. An excerpt:
To my mind, the due process questions surrounding these relatively new civil forfeiture practices are many. Start with the most fundamental one. The Fifth and Fourteenth Amendments guarantee that no government in this country may take “life, liberty, or property, without due process of law.” As originally understood, this promise usually meant that a government seeking to deprive an individual of her property could do so only after a trial before a jury in which it (not the individual) bore the burden of proof. See, e.g., 1 W. Blackstone, Commentaries on the Laws of England 134–135 (1765) (Blackstone); Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 315 (CC Pa. 1795) (Patterson, J.); Wilkinson v. Leland, 2 Pet. 627, 657 (1829) (Story, J.). So how is it that, in civil forfeiture, the government may confiscate property first and provide process later?
The answer, if there is one, turns on history. If, as a rule, the Due Process Clauses require governments to conduct a trial before taking property, some exceptions are just as deeply rooted. And for just that reason, these exceptions, too, may be consistent with the original meaning of the Fifth and Fourteenth Amendments. As this Court has put it, “a process of law . . . must be taken to be due process of law” if it enjoys “the sanction of settled usage both in England and in this country.” Hurtado v. California, 110 U. S. 516, 528 (1884); see, e.g., Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 278–280 (1856).
But can contemporary civil forfeiture practices boast that kind of pedigree? In Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), this Court noted that English and early American admiralty laws allowed the government to seize a vessel involved in “piratical” or other maritime offenses and later initiate postdeprivation civil forfeiture proceedings. Id., at 684. The Court observed that similar legal rules existed for cases involving “objects used in violation of the customs and revenue laws.” Id., at 682; see also K. Arlyck, The Founders’ Forfeiture, 119 Colum. L. Rev. 1449, 1466 (2019). After emphasizing the existence of those traditions, the Court proceeded to uphold the civil forfeiture of a boat. Calero-Toledo, 416 U. S., at 682, 690. Later and proceeding on much the same basis, the Court approved various aspects of civil forfeiture practice in the context of customs enforcement actions. See United States v. $8,850, 461 U. S. 555, 562, n. 12 (1983); United States v. Von Neumann, 474 U. S. 242, 249, n. 7 (1986).
These historical traditions suggest that postdeprivation civil forfeiture processes in the discrete arenas of admiralty, customs, and revenue law may satisfy the Constitution. But as the Court stressed in Von Neumann, “the general rule” remains that the government cannot “‘seize a person’s property without a prior judicial determination that the seizure is justified.’” Id., at 249, n. 7. And it is far from clear to me whether the postdeprivation practices historically tolerated inside the admiralty, customs, and revenue contexts enjoy “the sanction of settled usage” outside them. Hurtado, 110 U. S., at 528.
UPDATE: Evan Bernick comments:
Besides the originalist material in the concurrence itself, there's an interesting second-best/first-best originalism thing going on. If Gorsuch and Thomas had joined the dissenters, the result is a majority opinion making it harder for the government to do what G and T think is an unconstitutional thing. They didn't, so the result is that people have less protection against an unconstitutional practice until a majority is prepared to reevaluate forfeiture itself. Basically, they chose first-best originalism over second-best originalism.
Posted at 6:31 AM